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tv   Washington This Week  CSPAN  February 20, 2016 10:00am-11:01am EST

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>> our coverage will include coverage from the candidates and your reactions. ; 30 is tonight at eastern. also happening today is the funeral for late justice anthony scalia. a look here at the shrine of immaculate conception in washington, d.c. we will take you back here in an hour. until then, we will bring you an interview that justice scalia 2009, wherepan in he talks about the job of assisting port justice in reaching a decision. >> would you discuss the role of
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a supreme court justice. justice scalia: come out in the right way that justices should appeal. to decide on what cases the court should agree to hear. essentially two functions. the latter is prior. first of all, decide what to put on her docket. and what is on her docket, try to get right. host: what role do you see the supreme court playing in society today? hasn't changed over your tenure? justice scalia: i think the same role it has always played. i don't think it has changed. its proper role is, in a democracy, to give a fair and honest interpretation to the aning of dispositions that
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people have adopted. either in congress are statutes, or people when they ratify the constitution. as simple as that. no more, no less. i don't think we are leader of social causes. we are not pushing this society ahead. we are supposed to be interpreting the laws that the people have made. host: what do you like best about the job? justice scalia: i like figuring out the answers to legal questions. believe it or not. not everybody does. you have to have a very warped mind to want to spend your life figuring out the answer to legal questions. job. a very isolating
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in only time you see connection with your work from the outside is when you listen to argument from counsel. other than that, it is very is somebody in intellectual work. probably it most closely resembles the work of a law professor, which is what i was before i was here. i'm no more unhappy than i was before. of doinger two decades it, is there any aspect of the job that if you had the choice, you would rather pass it on to someone else to do or avoid? justice scalia: i think undoubtably, in my mind, the mostonerous, and uninteresting part of the job is the petitions that come to the court. they have increased and honestly.
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when i first arrived, it was was 5000 -- i think it year. now it is approaching 10,000. every one of them we have to consider. if not by reading the actual petition -- we rarely do that -- by reading summaries of the petitions. year, that ise a not a lot of fun. host: with the increasing number -100etitions, why only 80 cases a year? justice scalia: less than that, we have been averaging 75. that number is not out of line with what others supreme court's or jurisdictions do. i think we could do more than 75. we could do 100. i don't think we could be doing what we first did when i came on the court. i don't think we can do 150
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well. why? your guess is as good as mine. if i could say, i would guess there was a lot of major legislation enacted. not that much major legislation and new year's. decision has been the generator statutes resolved. we don't take cases because we think they were decided wrong.
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thelly take cases because analysis of the courts below reflect a disagreement on the meaning of federal law. you cannot have two different federal laws. we will take one or two of those cases. disagreements on significant questions have been more rare. it is not that we sit down and say, how many cases do you want to take? week,rickle in week by and we vote on those that we think are worthy of our consideration. the last few years, they have been adding up to 75 or so. host: when you make those decisions, are you aware at the time which ones will be the blockbuster cases? justice scalia: usually. i think you can usually tell
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which ones pertain to a major piece of legislation. a majorion that is impact on society. sure. host: does it affect the decision process? justice scalia: not mine. i don't think it does. i put in as much blood, sweat, as tears on the little cases i do on the big ones. if anyone asked me what is the faced, youe you have wouldn't want to know. it was a relatively insignificant case, but it was very hard to figure out. there is no relationship whatsoever between how important it is and how hard it is. host: will you tell me not? -- now? justice scalia: you don't want to know. host: i want to ask you about the role of clerks and what you
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do. you have had many of them over the years. do stay in touch with them? justice scalia: i do indeed. reunionan annual clerks every year. it is good to see them. it is one of the most enjoyable parts of the job. you work very closely with four young people every year. there are new ones every year. they are full of figure. they're not jaded. it is all new to them. few of themsome -- rub off on you. you become close. then, they go off. new -- ke acquiring for four new nieces and nephews. none of them will be a failure. they go off to do significant things. it is fun to follow their later careers. host: and you do in fact? justice scalia: yes. host: how do you use them in your job?
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justice scalia: i can say how i do. it is not necessarily what others do. i let them pick the cases they want to work on. draft. like an nfl i figured there likely to do the best work on the cases they are most interested in. they divvy up the cases. i usually discussed the case fairy briefly with the law clerk .ho has chosen it after the oral argument, i sit down with the clerk, and with the other three, who know ,omething about the case although not as much as the clerk who is responsible for it. we kick it around for as long as it takes. if i happen to be assigned the opinion, or the dissent, that clerk will likely do a first
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draft. he will write it out. i will put it on my screen, take it apart, and put it back together. i kid you not. i tell them, at the reunions, i am indebted to my law clerk for a lot of the quality of the work that comes down to my chambers. i could not do as well without reallyistance of the brilliant young people. host: how many hours do you spend each week? 40 hour a week job? ?he hour a week job justice scalia: one of the nice things or not so nice things about the job is you do not have to be here to work. i could, and i think some do, only come into court when there are oral arguments. i can do this job from home.
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the main thing it would deprive me of is consultation with my .aw clerks i do like to come in, but that has no relation to how many hours i put in. i almost always work weekends. not all weekend, every weekend, but some we ca weekends. host: is the ever really a break in the summertime? justice scalia: the summertime is a great. be clean our plate before we leave at the end of june. it is a summer without guilt. the only work we have to do over the summer is stay on top of circuit petitions because there is a monster conference to vote on all that has accumulated over the summer. manageable job.
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this town used to be deserted in july and august, there was no one here. now, we come back in september to get ready for the arguments in october. during the summer, you have time to do reading the did not have time to do during the courtroom. and, regenerate your batteries. host: you mentioned that the court has retained a tradition that the other branches used to have. the court is also quite well known for other traditions. i just wrote down a few that came to mind. institutions. i wonder why they matter to the
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process and why they are retained in 2009. thinke scalia: i anditions in a way define institution. institutions are venerable -- are respected when they are venerable with tradition. remind peopleions . i guess we could sit in a bus , andon and not wear robes just take tops, by don't think that creates the image the one for the supreme court of your country. i was looking at a little bit of history before he came in. your earliest chief justices did not wear them --
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justice scalia: robes? around 1800.ted justice scalia: john j was the first chief justice, before 1800, and in that portrait, he is wearing the glorious rope. obe. what you are saying is news to me. host: i will go with john j. why the robes, what is the symbolism behind the robes? you continue to wear them in our society? justice scalia: i'm sure we could do our work without the roads. we could do our work without this glorious holding where you are deciding to have this conversation in. buildingrobes and the is the to the people -- in
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significance that goes on here. that is nothing new. billings don't always look like bus stations, and they shouldn't. host: justice breyer called it the symbol of the american judicial process. when you come to work here, are you conscious of that when you drive appear after doing it for so long. justice scalia: conscious of? host: conscious of it being hard of american society. get used toia: you it. you take stuff for granted that maybe shouldn't take for granted. wearing a granted robe going on the bench. are there special places
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in italy where you might go to reflect on the history or the predecessors? justice scalia: not really. i hang out in my chamber most of the time. the center of the building, what is the reason the building is here is the audience chamber, where we all are you. suggests,uste nature the ceiling that is so high you can hardly see it from the ground. talk about the process of oral arguments. can you talk about how you use oral arguments, and why in fact there is so much paper needed oral argument is even needed? justice scalia: a lot of people think it is just a dog and pony show.
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i read a 60 page brief, a 40 page reply brief, an amicus brief from the solicitor general, sometimes a dozen other amicus brief, that will not always read. in the margin. what can someone tell me in half an hour that would make a difference? the answer is it is probably though not unheard of, the oral argument would change my mind. it is quite common that i go in with my mind not made up. a lot of these cases are very close. persuasive counsel can make the difference. there are things you can do with oral argument that cannot be done in a brief. you can convey the relative importance of your various points. sometimes, see you have four
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points, and one of them is very complicated, not the most important one. it takes a third of your brief. if i read your brief a week ago, i have a misperception of your case. you can set that right in oral argument. very often, that third point is a difficult point. it may be the first point you address in the brief. you don't put jurisdiction last. it has to go first. in fact, that is not the strongest point. even though it takes more of your brief simply because it is more complicated. you get up and say, your honor, we have five points in the brief, and think they are always your attention. really, what this case comes down to is making the big point. that can make the difference. and, the brief cannot answer back when i write nonsense in
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the margin. you can ask counsel, is there a reason why this is not nonsense? i am a big proponent of oral argument. i think it is very important. you would be surprised how much probing can be done within half an hour. an awful lot. quality ofis the counsel that comes before you generally? chiefs ago,ia: two chief justice burger used to complain about the low quality of counsel. reaction.opposite thatd to be disappointed so many of the best minds in the country were being devoted to this enterprise. defenderd be a public from podunk, and this woman is really brilliant.
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wise and she out inventing the automobile, doing something productive for this society. lawyers, after all, don't produce anything. they enable other people to produce and go on with their lives efficiently in an atmosphere of freedom. that is important, but it does not put food on the table. there have to be other people there doing that. i worry that we are devoting too many of our very best minds to this enterprise. they appear here in the court. even the ones who will only argue here once and will never come here again, i'm usually impressed with how good they are. sometimes you get one that is not so good. i am large, i don't have any complaints about the quality of counsel, except maybe we are wasting some of our best minds. how can i put it another way?
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-- law firms spend enormous amounts of money to get the very very brightest. it is worth it. the law is so obligated and so complicated and complex. such a premiumt on brains, but it does. i think lawyers are generally pretty smart people. host: can you talk about conference and how it works? justice scalia: i can't talk too much about it, but i can say we should done together and there's no one else in the room. i'm not giving away anything because chief justice rehnquist wrote about the court in which
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he said conference is probably a misnomer. it is not an occasion on which we try to persuade one another. very few minds are changed a conference. each judge states his or her view on the taste and how he or she votes. right around the table. if in the middle of someone's presentation, you disagree with something that this person says saying,hn stevens is wait, why does he say that? that will not happen. let him finish. at the get all around, end, you can speak a second time, and raise some questions, but is not really an exercise in persuading each other. it is an exercise in stating
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your views and taking notes. you take notes of that if you are assigned the opinion, you can write it in a way that will get a lease for their votes besides your own. that is the principle function. us in ae chief told conversation that he works very this traditionir be shot of assignments. you said earlier that with the clerks, you try to get them interested in the cases they are most interested in. justice scalia: on very rare occasion have i said, i would like lattes. but you not more than three times, the whole time i've been on the court. now, i pretty much take what i'm given. both of the chiefs that i served under have tried to be fair and give you good ones and dogs.
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of course, sometimes with a is nots a good opinion what you think is a good opinion. chief justice rehnquist used to love fourth amendment cases involving searches and seizures. i hate for the moment cases. it is almost a jury question, whether this variation is an unreasonable search and seizure. opinion, butthe bill rehnquist, if he gave you that, he but he was entitled to give your dog. i didn't much like that. host: you are a writer. you have written three books now, correct? justice scalia: two. host: writing is something you seem to enjoy. justice scalia: you don't want to be an appellate judge if you don't enjoy writing.
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often put it, i don't enjoy writing, i enjoy having written. i find writing a very difficult process. sweat over it. i i write, i rewrite. before the opinion goes out, the clerk asks, you don't want to read it one more time? and i change something else. it has to be wrestled from my grasp and send on to the printer. writer -- ast file si think it is worth the time you spend on it. host: has technology made the process easier? justice scalia: we have always
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had technology. wasd wordprocessors when i a law professor. that makes writing, especially when you are editing someone's first draft, enormously more simple. you don't have to write little balloons, or whatnot. you just highlight the part you want taken out. , it's an. it makes it a lot easier. host: when you strongly disagree with someone's view, how do you prevent the opinion or dissent from being personal? justice scalia: you criticized the argument, not the person. argument is one that is addressed at the person. i feel quite justified in whackingthe argument -- walkin
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the argument to the extent it deserves. want to write a majority. when you want to write a dissent? are more fun to write. i have to say that. when you have the dissent, it is yours. you say what you want. if someone doesn't want to join it, who cares. fine. it's my dissent. when you are writing majority, you don't have that luxury. you have to crafted in a way that at least four other can jump on. actually, you try to crafted in a way that as many people as possible will jump on. host: we have just a few minutes left. we are talking at the time when
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the court is about to say goodbye to a member and take on another one. how has this institution changed during the process? justice scalia: the institution doesn't change at all. relationships change. you lose a friend. hopefully, you acquire another one. . will miss david souter i will miss him a lot. he has sat next to me for the whole time on the court. bench, he out to the is to my left or my right. he has been a rather constant companion. we chat back-and-forth during an argument. he is an intelligent, interesting, good men. an.good m i miss a lot of my former
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colleagues on the court. that's the process. they go. new people come on. host: during your tenure, there have been seven new arrivals. i'm wondering, when you welcome new justices into the system, when they come to the appeals court, is that acclimation process here? justice scalia: not really. it's the same job as being an appellate job on a lower court. the argument, write the briefs. we have the added job of deciding what to decide. except for that additional part, maybe onesame, with other exception. on the lower courts, if there is a whole line of supreme court
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authority the fundamentally disagree with, it doesn't make it easy, you just say, i think .t's stupid you don't have to worry about whether it has to be changed. on the highest court, if it is indeed a stupid line of cases, it is your stupid line of cases, and you have to decide, do you leave it alone, simply refused to extend it any further, or do you try to get rid of the whole thing? you don't have to worry about that on the court. you do appear. host: we are out of time. for people for whom the supreme in thes just an item newspaper, i wonder what you would like to say to them about this place, how it functions, and what they really ought to know about the court. justice scalia: it's really not a point distinctive to this
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court. it is a point that applies to all others. you really can't judge judges unless you know the materials that they are working with. you can't say, this was a good decision, or good court, simply because you like the result. we don't set here to make the win.decide who ought to are a good if you judge, you don't like the result that you are reaching. in,his job, it is garbage garbage out. your job to decide what is bullish and what isn't
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lish and whato isn't. if interpreting the words of the law in a fair fashion is what .ounts unless that's what you want your judges to do, you have a judiciary that is not worth much , that is just making the law, instead of being faithful to what the people have decided. judges,d to judge unless you know what they are working with. host: thank you for spending time with c-span. justice scalia: my pleasure. live look here at the basilica national shrine of immaculate conception in washington, d.c. we are just moments away from the funeral mass of supreme
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court justice at the scalia who passed away last week at the age of 79. decades onarly three the high court 4000 people are today at thettend nation's largest roman catholic church. hominy will be delivered by one of the justices children, reverend paul scalia.
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> again, we are live at the basilica of the national shrine immaculate conception. the funeral mass of antonin scalia a coming out at 11:00. the president will not be there. the vice president, joe biden, will be attending today. president obama and the first lady were among the more than 6000 people who paid tribute to antonin scalia a at the supreme court on friday. the public viewing was extended well past the original 8:00 scheduled and time. to joernest pointed
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biden's personal relationship justice. his casket was lying yesterday at the supreme court where, for the public was, able to visit. we are standing beside the casket. we will show you some of that until the funeral mass gets underway.
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>> a look at the supreme court great hall yesterday. we take you back live now to the basilica of the national shrine of the immaculate conception in washington, d.c. the funeral mass coming up this morning for supreme court ,ustice at the nee antonin scala who passed away at the age of 79.
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[organ music]
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♪ [organ playing]
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>> [indiscernible] dear brothers and sisters in the lord, thank you for joining us today for the funeral mass of justice antonin scalia here at the basilica of the national shrine of immaculate conception. you honor the scalia family and the justice with your presents today. thank you. on this occasion, be happy among and christianths
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denominations. for those of you unfamiliar with the liturgy, or only partially acquainted with it, please refer to the program to follow along. i also refer you to the guidance provided by the united states conference of catholic bishops for the communion. it is toward the end of your program. may ask you to take a moment to review prior to the start of the mass. in addition, i ask all members photographyom any with the camera or smartphone, and silence the rink is for the sacredness of the family. the funeral mass will begin shortly. there are two processions. the first will be for the priests entering the sanctuary. the second, the principal
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procession, will go down the main aisle to greet the casket. at that time, please direct your attention to the center aisle for the opening rights. thank you for your kind attention. ♪
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[bells]
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